Odor of Marijuna Is Not Probable Cause to Search or Arrest in Mass

STUDIO: We are very excited to be joined by one of the members of our Expert Network who comes in bearing gifts — I like when it’s — it’s a red box, it says the Candy House on it, and then I go to pick it up, Mrs. Nelson’s Candy House. I pick it up and it’s a heavy box too. That tells me it’s doubly decadent. But local Attorney Michael Bowser is joining us in Studio this morning. He is a member of our Expert Network, and he’s here in the luxurious and spacious studios of 98 WCAP. Good morning, Counselor, how are you?

MR. BOWSER: Good morning, Ted. How are you doing?

STUDIO: Doing very well. I’m doing even better now that I know — my sugar rush — I haven’t even opened it, but I know my sugar craving and my sugar rush will be attained by the time I finish this spot.

UNIDENTIFIED: You know what the best part is? I’m never here and I just got one. What the hell.

STUDIO: You got one too?

UNIDENTIFIED: Yeah.

STUDIO: Oh, Austin’s really going to be bummed that he didn’t come in today.

UNIDENTIFIED: Oh we don’t have to tell him.

STUDIO: So how are you today, Counselor?

MR. BOWSER: I’m good. I heard the conversation about lawyers and psychopaths yesterday.

STUDIO: You –

MR. BOWSER: So I wanted to make sure that I put that to rest and let you know that not all lawyers are in fact psychopaths.

STUDIO: That was actually the one I disagreed with the most. That — I could see the TV/Radio host. I could even see sales people. But you know, the ego driven professions would have a lot more crazy people. You know, attorneys have egos as well, but you guys, I find you guys actually rather sane compared to us in radio.

MR. BOWSER: Yeah, I was very surprised with the list that you had presented. I would have thought there would have been other professions, not sales people, journalists, radio personalities, TV personalities, but –

STUDIO: Well to me that was kind of a stupid list. We melded the conversation off to just crazy people in general. Psychopaths is a very specific term and that’s also one that you — I think you have to be like clinically diagnosed, and these diagnoses stay private between the person who diagnoses you and the patient?

UNIDENTIFIED: That’s what you’d think.

STUDIO: So how — really, how accurate of a study could it have been?

UNIDENTIFIED: Probably not at all.

STUDIO: I would like to welcome in our next guest this morning. He is a member of our Expert Network. He is a board certified DUI attorney and he practices many other types of law as well with offices in Chelmsford and Lowell. Attorney Michael Bowser joining us in studios. Good morning, Sir, how are you?

MR. BOWSER: Good morning, Ted, how are you doing?

STUDIO: I’m doing well. Unfortunately despite your many appearances here on the morning show and the fact that you’ve helped a lot of people because of your appearances, you have yet to receive a vote for person of the year. But we still have an hour and a half at least of balloting to get through.

MR. BOWSER: No, I am fine with that. There are plenty of deserving people other than myself.

MR. BOWSER: It’s kind of a funny week, isn’t it? With the holidays right in the middle, twice, and my kids’ school vacation is a little bit odd. It’s just, you know, going back to school on a Thursday midweek is a little bit strange so, they’re in bed. I mean they’ll sleep until 11 if they don’t have a hockey game, so. I left the house, it was quite quiet this morning.

STUDIO: So they’ll have to go back Thursday?

MR. BOWSER: They’re scheduled in Chelmsford to go back to school Thursday.

STUDIO: But.

MR. BOWSER: Apparently we’re going to have a very big snow event, so they’re hoping for maybe a snow day on top of their vacation week.

STUDIO: Keep those fingers crossed, kids. What do you do for New Year’s Eve? Do you — do you traditionally go out or do you stay in on what I like to call amateur night?

MR. BOWSER: Yeah. A little bit of both. We don’t venture out too often. We might go play cards at my brother’s house. That was what we did last year. We really enjoyed that.

STUDIO: That’s a great way to spend New Year’s Eve, honestly. You’re in, you’re safe. Of course I’m saying this, there’s somebody in the restaurant industry who wants people to go out and have fun, but that’s what I would do. I would stay in, I’d grab some food and just spend it with some close friends and family and play cards.

MR. BOWSER: Yeah, it’s always been a good night to stay in and hang around with friends and family.

STUDIO: Let’s talk about a couple of things. First of all, the new year is bringing a lot of changes in laws. You know, we’re hearing on the news, new — a lot of new marijuana laws, a lot of new other laws, including in Wisconsin where cities and towns can now give permits for peddle bars. These are bicycle bars that will take you back and forth to taverns, but also have a bar attached to the lead bicycle. And you can actually drink at it. There’s also a change in New Hampshire’s laws that might affect folks. Is there a new DWI law?

MR. BOWSER: There was one — there was one major change in the New Hampshire DWI law last January. And the change in New Hampshire was the treatment plan in the way that they go about imposing their counseling and first offender program.

Historically in New Hampshire, if you were convicted or you pled out to a DWI first offense, they would send you to a standard, what they call the impaired driver education program.It’s based on a six week, 16 hour model. And at the end of that program, they would determine in an exit interview whether you were a people that needed further alcohol counseling, in need of more services. And then they would put in place an after care plan if n

Now they’ve flipped it. As of this year, everybody must go through a screening for alcohol abuse within 14 years of their sentencing. After that screening, they’re going to be determined to do the impaired driver education program or they go on with 30 days for what’s called a LADAC evaluation. And LADAC, that acronym stands for Licensed Alcohol Drug Addiction Counselor evaluation. And then they put a counseling plan in place before you even enter the first offender

So that changed the landscape dramatically in New Hampshire. The statute that was voted upon by the state senate in New Hampshire at the end of this year was the interlock device being offered for first offenders. But my understanding is, and the law has now passed but they’re going to make the interlock device, which is the ignition interlock device, available to first offenders, so that a first offender can get their license back immediately upon a plea. Which is similar to the Massachusetts program. New Hampshire has some of the longest suspensions in the

If you suffer a first offense in New Hampshire, you’re going to lose your license anywhere from 30 days –strike that — 90 days to nine months. They have very, very long suspension periods with no hardships. And I think the senate, they’re — what I heard was they did not want to bankrupt families and have bread winners going without jobs because of a first offense DWI, which is — the effect of a DWI in New Hampshire, there’s very little public transportation. So you can lose your livelihood if you lose your

STUDIO: Couple of follow up questions on that. I was curious. First of all, if you have your license pulled let’s say in New Hampshire. Then it becomes illegal for you to drive in any state, correct? You can’t get away with driving in Massachusetts? Does Massachusetts have jurisdiction?

MR. BOWSER: The states, depending on whether they’re members of a compact, will honor, will or will not honor the notice of a suspension from another state. So the classic example, if someone from Lowell is arrested in Nashua and they get charged with a DWI. If they refuse the breath test or they take the breath test in Nashua, their privilege to operate in the State of New Hampshire is going to be revoked for a period of time.

The privilege to operate in New Hampshire is not their Massachusetts driver’s license. They leave the State of New Hampshire after being bailed and released by the bail commissioner. They come home. They still have a valid Massachusetts license. They’re going to keep their valid Massachusetts license until the Massachusetts Registry catches up with them. And the way that they do that is they issue a notice through the mail called an NDR Notice. National Driver Registry. National Driver Registry is just a data base by which all of the states share information about drivers from other states. Mass cross references that data base peri

They pick up your name, you’re red flagged out of New Hampshire, and they call it the Registry love letter, you get the love letter from the Registry saying, hey we found out about New Hampshire last month, so your Mass license is going to be revoked effective, and then they always give you a date, an effective date, 30 days down the road. That is when your license is revoked. That is when you can no longer drive

STUDIO: In any state?

MR. BOWSER: In any state, because you don’t have a valid license. But until you get that notice, you cannot drive in the State of New Hampshire. Your privileges are revoked there.

STUDIO: Okay.

MR. BOWSER: But I tell people, you can continue to drive in the other 49 states. It’s pretty difficult to get to Maine without going through New Hampshire. But, until the Mass Registry catches up with you, you can drive. The only entities in my experience, and my advise is, the only entity that can take a Massachusetts driver’s license is a Massachusetts court or the Massachusetts Registry of Motor Vehicles.

STUDIO: Uh-huh. how long does it take for that notice to come out from our friends in New Hampshire or another state for that matter?

MR. BOWSER: The suspension of your privileges in New Hampshire goes into effect 30 days after your arrest. There’s always a 30 day window. You have a temporary permit to drive in the State of New Hampshire. So if you get arrested January 1st, you’re going to be revoked February 1st. The notice from Massachusetts is probably going to show up down here sometime in March or April.

STUDIO: Are there any states that are not part of that registry, let’s say — I’m going to pull Wyoming, because I’m going to the far reaches of the continent. But is there a way, if I get caught in Wyoming while I’m vacationing or whatever? Is there a way — it is a possibility I can get away with it?

MR. BOWSER: Well there are fewer and fewer states that will not pick up on an NDR notice. For instance, when you go to renew a license in New Hampshire or you go to renew your license in Massachusetts, they do an NDR check. Meaning they go into the national data base and they look to see if you’ve had any outstanding matters in other states. Florida, Montana, Wyoming, whatever it may be. So I think there are fewer and fewer states that don’t pick up on these suspensions. The question is, what do they do in response to it. Historically the State of New Hampshire, if you reverse the scenario we just talked about, a New Hampshire resident gets arrested in Massachusetts. New Hampshire does not reciprocate on an administrative suspension from another state like Massachusetts. New Hampshire does not recognize a continuance without a finding, which is the most popular plea disposition on a Mass OUI. If you’re a New Hampshire resident and you take a CWOF, a continuance without a finding on an OUI in Massachusetts, you’ll never lose your New Hampshire driver’s license. So the back and forth between the two states is drastically different.

STUDIO: So can you continue to drive in Massachusetts however?

MR. BOWSER: No.

STUDIO: No. But you –

MR. BOWSER: And then the reverse is true. Your privilege to drive in the Commonwealth is revoked.

STUDIO: Okay.

MR. BOWSER: But there will not be a reciprocal suspension from the State of New Hampshire based on a CWOF because that’s not a, quote/unquote, conviction.

STUDIO: Okay. But you have a valid driver’s license?

MR. BOWSER: You have a valid New Hampshire license.

STUDIO: Alright. So you — let’s say this has happened and you know, New Hampshire didn’t revoke your license because you got pulled in Massachusetts. And let’s say a police officer pulls you over in Massachusetts for speeding or for running a red light. Not your, you’re not under the influence. Is there anyway for that officer to know that you’re driving with a suspended license?

MR. BOWSER: That person is going to go to jail for 60 days. So if you’re driving –

STUDIO: So they are able to track it, okay.

MR. BOWSER: Yeah, oh absolutely. You’re going to be listed in the registry data base here in Massachusetts as revoked for drunk driving. Now when the period of suspension is over, and you’ve completed your program and paid your reinstatement fee, you’ll be fine. But if you were to drive during a period of suspension for drunk driving in either Mass or New Hampshire, both of those are jailable offenses, mandatory minimum jail sentences in both states.

STUDIO: My last question about this. You talked about some of the first time offender programs. How well do those work generally? I mean we hear the horror stories. The person who’s been pulled over multiple times, ten times, in some cases, there was a case in California, an 18 time offender. But you know, these are the extremes obviously and some people never, you know, change. But how well do these first time programs work? If somebody’s gone through this process and had their license pulled and had to go through the classes and the whole legal process, do they generally learn their lesson?

MR. BOWSER: I think the recidivism rate is pretty low. Now there certainly is recidivism, repeat offenders, but the vast majority, and I mean the vast majority probably north of 80 percent, 90 percent of first offenders don’t become second offenders. So the program as constituted works.

STUDIO: So 90 percent?

MR. BOWSER: No. Don’t quote me. I’m not — I’m just saying I think the recidivism — the repeat offender rate here in Massachusetts and New Hampshire is probably, you know, I would say it’s less than 20 percent. It’s got to be. Because the number of repeat offenders is just not that great. There certainly are repeat offenders from both states, but first offenders tend to remain first offenders.

STUDIO: So when we hear these horror stories of a multi, multi time offender. It’s really the legal system that kind of has dropped the ball there?

MR. BOWSER: That was — I mean we were talking about Melanie’s Law. Everyone says well what is Melanie’s Law. Melanie’s Law is the drunk driving statute in Massachusetts. And it was so named for a young woman, girl actually that was killed by a repeat offender. A guy that had multiple, multiple offenses over a couple of decades. And that law was designed to address just that situation. So that other states like New Hampshire for instance, we’re always talking about New Hampshire, has a ten year look back.

If you have an offense more than ten years ago and you repeat offend, you’re going to be a first offender. If you repeat offend in Massachusetts, they’re going to go back for your entire lifetime and pick up each and very prior OUI including continuances without a finding, and count those. So I for instance had one in Lawrence just recently. Second offender. And his first one was in 1981. His second offense that we, ultimately we won, but it came at Christmas time of 2012. So they went back to 1981 and –

STUDIO: 31 years later.

MR. BOWSER: And counted a continuance without a finding out of the Lowell District Court when he was a very young man.

STUDIO: Uh-huh.

MR. BOWSER: And he became a second offender. And the implication of that is, he was looking at, you know, if convicted of a second offense, mandatory jail, interlock ignition device for two years, a three year loss of license on a breath test refusal, which we were able to vacate that chem test refusal suspension because we won the OUI charge. But that’s the effect. So that law was designed to address just that situation. The repeat offender even from way, way back.

STUDIO: Is there a point under the drunk driving laws where there’s a, you know, strikes and you’re out for good point, or the NSA death penalty in college football. But is there — is it all case by case subjective according to what the judge –

MR. BOWSER: Well here in the Commonwealth and in New Hampshire, we don’t have a three strikes you’re out. I don’t know. I know that the penalties for some repeat offenders in other jurisdictions are incredibly harsh. Long state prison sentences in states like Texas. I know colleagues that I’ve spoken to have had multiple offenders in Texas that are looking at long state prison terms for repeat offenses for DWI.

STUDIO: And as we always say during your segments, your Expert Network appearances with us. The simplest way is, look, don’t drink ad drive. If you even think that there’s any question in your mind that you might be impaired, you know, find another way to get home. Turn the keys over, call a friend, you know, don’t even take that chance. Because even if you do manage to win through the legal proceedings, it’s such a pain, your life will change for that entire period of time.

MR. BOWSER: I tell people all the time, a first offense is incredibly inconvenient. A second offense is life altering. And to give you an idea as to what is drunk driving, in the State of New Hampshire, the standard of proof, what they have to prove in order to convict you is if you were impaired by alcohol to any degree. Any degree In Massachusetts they need to prove that your ability to operate a motor vehicle safely was impaired, reduced or diminished by the consumption of alcohol. Two different standards, but when you listen to it and you think about the legal term impaired to any degree, is a pretty low standard. And that’s the threshold for the offense, so.

STUDIO: And especially tonight and tomorrow. Look, they’ve publicized it. There’s no excuse. Drive sober or get pulled over. The police are out, the state police, local police, they’re looking for you. It is a point of emphasis in law enforcement like it never has been before in history.

MR. BOWSER: Right. And they’re emphasizing the use of public transportation. I just heard that on another station on the way in. The use of the T tonight in Boston for First Night. And yeah, they do, they definitely, they emphasize the use of the public transportation and they will be out there in force pursuant to grants, possibly running roadblocks. You’ll see an enhanced presence tonight.

STUDIO: Alright. So don’t take any chances. Don’t drink and drive. Unfortunately Counselor Bowser, you know that there are going to be some folks who aren’t going to listen and who are going to be in need of the services, and that is where you come in. Offices in Chelmsford and in Nashua. Are you –

MR. BOWSER: Yes.

STUDIO: Are you available tomorrow morning if somebody needs to call you.

MR. BOWSER: Yes.

STUDIO: In case of an emergency. How can we get a hold of you?

MR. BOWSER: Well the beauty of the internet is the minute that someone lands on my website, I get a text, I get an email, and they can always reach me on my cellphone as well. So it’s Bowserlaw.com. You can follow me on Twitter at @bowserlaw and please have a safe and happy new year.

STUDIO: Don’t take this personally. I hope your phone doesn’t ring tomorrow. I hope you get to relax. What’s the –what’s the busiest time for you by the way? Is it this time, Christmas, New Year’s? Is it St. Patrick’s Day?

MR. BOWSER: It’s — I don’t know why historically, but the slowest two months of the year, and this repeats every year and I don’t know why, is January and May. And I don’t know why. And it seems to get slow in those two months, and then it picks up dramatically afterwards. Maybe it’s the summer, maybe it’s post-holiday. I have no idea. But those, for whatever reason, tend to be the slowest months. I’ve certainly been busy, I haven’t seen a slow down of late, so things are going well.

UNIDENTIFIED: God only knows who made that list, you know what I mean?

STUDIO: Well I didn’t disagree with all of the things on the list, but –

UNIDENTIFIED: I’ve got one to throw in the hat there.

STUDIO: Who?

UNIDENTIFIED: The meter maids. The parking meter maids? Absolutely. They’re like all over the place, whipping around and then, you know, I could be in an illegal spot for 30 seconds and they’re already on — you know, right on me, writing a ticket. I’m like where did you come from, like psycho.

STUDIO: That’s because they have new fangled technology that allows them to know when your meter –

UNIDENTIFIED: Absolutely.

STUDIO: — is expiring. So are you ready for the holidays out there or are you like me, are you in for the last minute to do all you have to?

MR. BOWSER: Well the next couple of days, you were the recipient of a pound of fudge from Mrs. Nelson’s Candy, and I have a –

STUDIO: So that’s pure Mrs. Nelson’s fudge in that box?

MR. BOWSER: That’s chocolate chocolate, penuche and penuche there. But I’ve — over the last decade or more, I’ve always made a habit of handing out fudge at Christmas to all the folks that I regularly come into contact with and work with and have the pleasure of hanging around with so. That’ll be on my list of things to do in the next few days.

STUDIO: Alright, well we’ve got some things to talk about this morning. A number of things that you want to kind of touch on. First of all, as we get to the holidays, anything that — I’ve noticed all these local police departments and the big campaign here. Drive sober or get pulled over. This is not a time to get reckless or take chances with driving an automobile.

MR. BOWSER: It never is, but the holiday season, you generally see an up-kick in the enforcement of OUI, drunk driving, because there is usually grant money available to a number of police departments, and — and that’s federal grant money to do specific patrols, extra patrols, just for OUI detection and arrest. You’ll see it at Christmas, you’ll see it at New Year’s. Again, we may see roadblocks over the holiday season and you will see extra patrols. They are out there during the holiday season doing their job.

STUDIO: I wanted to ask you about something that was interesting as we received news that the new Lowell courthouse there is kind of back on the — on the front burner for a lack of a better term. One of the things that helped put it there was a recent tour by the person in charge of the buildings andthe facilities.

MR. BOWSER: Uh-huh (yes).

STUDIO: Basically ripping the existing courthouse in Lowell saying that they’re — you know, if they were a house, they’d call them uninhabitable. Are the courts — you work all around and you also work in New Hampshire.

MR. BOWSER: Yes.

STUDIO: Are the courts in Lowell that bad?

MR. BOWSER: If — you know what? I’m really thankful that wasn’t on my list to discuss, but I’m so glad you asked me that question. I — my practice takes me — because of the nature of my practice and where my business comes from, I tend to travel all over the place. And by way of example, I can tell you that in the last two years, I have tried cases and just, this is just a handful of cases of places I’ve been. The Brockton District Court. Brand new facility, gorgeous, secure, clean, huge. The Plymouth District Court. Same thing. Brand new facility, just an excellent, excellent place to go if you have to go to court. Worcester, Taunton and then there’s a whole litany of places, even the Lawrence District Court. The Lawrence District Court has been, you know, open in its new form for over ten years, but just the fact that they, they have these facilities in all these other communities. Salem, Massachusetts, I’ve tried. There are new courthouses, new facilities in basically every other urban community in the Commonwealth but for Lowell and I believe it’s either Fall River or one of the, you know, southern seat area that needs one. But we are desperately, desperately in need of a new facility. The Lowell District Court is one of — and I don’t mean this as an insult to anyone who works there — but it is one of the most decrepit facilities that I appear in regularly. It is old, it is dangerous, it is dirty just by the nature of how difficult it is to upkeep it. It is difficult to secure. And it’s difficult to work there. For the people that work there –

STUDIO: It affects work performance.

MR. BOWSER: It absolutely –

STUDIO: — does it not?

MR. BOWSER: It absolutely does. And the people that work there, it is one of the busiest district courts in the Commonwealth. The people over there literally work their tails off and they deserve better. And the community here deserves better. It’s a busy court, there’s a lot of business that comes in and out of that court and they should and they will eventually, hopefully soon, combine the superior court, th district court, the probate court, the housing court, the juvenile court into one big, new, safe facility.

STUDIO: Alright. A couple of things that I know you wanted to touch on. One of them was odor of — was it marijuana.

MR. BOWSER: A friend of mine just recently put on a, wha we call a CLE, a Continuing Legal Education. Jason Green, he’s with the CPCS, and he put together a nice compendium of recent changes in the law. So I thought that would be interesting to bring to the listeners. Yeah, by way of example, there’s been a change in the law in Massachusetts over the last couple of years. A couple of cases that come down regarding the odor of marijuana. Typically –

STUDIO: I believe there was — was it here in Massachusetts the case where an officer did a search because he smelled marijuana, but it got thrown out.

MR. BOWSER: Because we changed the law here in the Commonwealth. The Legislature adopted a new statute that says that possession of less than one ounce, if you’re over the age of 18, is a civil infraction.

STUDIO: Okay.

MR. BOWSER: It’s not a criminal act. Therefore, the mere presence of the odor of marijuana or even freshly burnt marijuana, that no longer gives rise to probable cause to arrest or search because the mere presence of marijuana without knowing exactly how much is there, is not a criminal act. So you still need what are called reasonable articulable facts to conduct a search based on that odor. And there has to be other facts available to let an officer know that there may be something more than an ounce present.

STUDIO: Now is that a search as it pertains to finding someone guilty of drug possession or distribution? Or for the fact of driving while impaired, because the — I would think the smell of marijuana in the air in an automobile would kind of be like having an open container. That would be a legal no in terms of driving under the influence.

MR. BOWSER: Well there’s actually no case law on that point and there is specifically a case, Commonwealth v. Bassinet, and Commonwealth v. Bassinet holds that the presence of an odor of an intoxicating beverage, that in and of itself, just the mere fact that there’s an odor emanating from the driver. No slurred speech, no eyes, you know, no difficulty answering questions, no erratic operation because Bassinet was stopped at a roadblock.

STUDIO: Uh-huh.

MR. BOWSER: But the mere presence of the odor of alcohol was enough to direct that car, seize that car and direct it out of the line of traffic, into the pit for testing and field sobriety tests and ultimately an arrest. Now there is not a case on point that says, and this will come up I’m sure, that just because there’s an odor of marijuana, can an officer further detain that person for investigating an OUI drugs charge. And what’s interesting is I have this case right now. I don’t believe a police officer without some kind of specific training can state an opinion as to whether someone is impaired by marijuana. And that Canty decision that I put there before you. That’s a case that came down just within the last month or two where the SJC reminder the Courts that police officers can state an opinion as to whether a person’s impaired by alcohol. I don’t think they can — I don’t think they can state an opinion as to whether you’re impaired by marijuana. But they cannot state an opinion as to whether a person’s ability to operate safely is impaired by alcohol. That’s the jury instruction and that’s the province of the jury.

STUDIO: It’s interesting because I have a hunch with where we’re moving, A) with the medicinal marijuana and the dispensaries, and you know, who knows, some folks who are trying to outright legalize the use of marijuana here in the Commonwealth, and that may be, you know, not too far down the road. This is going to be a legal battleground, a lot more if I’m kind of reading the tea leaves correctly.

MR. BOWSER: Absolutely. The interesting thing about — especially drug defense, is that it is so fact intensive. You know, from, you know, the law is the law, but the facts of every case are different ever so slightly from one case to the next. And you’ve got to plug those facts into the law as it exists and that odor of marijuana, whether that’s grounds to further an OUI investigation, is a perfect example of where the facts will eventually take us bumping up against the law, and you know, a new decision will come down.

STUDIO: Well we’ve talked about, in terms of alcohol, they can measure your blood alcohol content and if you come above that legal limit, then you’re in a lot of trouble. There is no such test for drugs, whether it’s prescribed medications or illegal drugs, right? Is there a blood test that can –

MR. BOWSER: Well –

STUDIO: Well they say, okay if you’re above a certain amount of, you know, traces of marijuana or cocaine or Oxy, you’re under the influence.

MR. BOWSER: Well there’s a — well two — there’s a distinction to be drawn between licit which are prescribed drugs, and illicit drugs which are your narcotics such as cocaine, even marijuana, heroin. There is no per se level for any particular substance other than alcohol.

So if you tested positive on a blood test for heroin, cocaine, marijuana, first of all, there’s going to be no administrative suspension like there would be if you took a breath test at the time of the arrest and you’re over, and when you walk into a courtroom, there is no per se level.But certainly the government could employ a toxicologist to come in and testify about the presence and the amount of that substance or its metabolites in your blood. And then depending on the substance, they may be able to state an opinion as to whether a person was under the influence of that particular substance. Again, your typical roadside encounter that results in an OUI arrest, the police officer, he or she is typically not qualified or anywhere near qualified to state an opinion as to the impairing effects of any number of substances, whether they be licit or pr

STUDIO: So this is interesting to me because I’m old enough, I think I’m old enough to remember when the charge was DWD, driving while drunk. And suddenly the “D” got replaced by an “I” and it became under the influence. So that influence, I assume influence would cover other things besides alcohol. Yet if I’m reading this thing correctly the, the substance that is legal to use up to a certain degree, alcohol, legal to purchase it if you’re of age, legal to drink it if you’re of age, can get you into a lot more trouble if you’re using it or under the influence of it while driving than the illegal stuff that you m

MR. BOWSER: Well you can certainly be arrested and charged for being under the influence of the illegal substances. I think that it’s sometimes more difficult to prove. If it is a licit drug, a prescribed drug, the burden is on the Government to show that essentially the driver knew of the ill side effects that could occur, took the prescribed medication knowing what the ill effects could be, and then drove. That’s a very difficult thing to prove. If it’s a narcotic or an illegal substance, they don’t have to prove that knowledge. So basically if they can just prove that you’re under the influence of heroin, that is enough to prove guilt. So you’re still going to be charged being under the influence. It’s not like you’re getting a freebie and it’s actually becoming much more prevalent. People driving around, taking their medications as prescribed, and not realizing the effects of those prescribed medications, because they can impair.

STUDIO: Did you say, can they give one of those field sobriety tests if it’s — if it’s say heroin as opposed to alcohol?

MR. BOWSER: The field sobriety tests, the standard three that you will always see administered and that officers are trained to give is the, what’s called the horizontal gaze nystagmus, the walk and turn test and the one-leg stand test. Those tests were designed to determine impairment by alcohol, because supposedly they mimic a person’s ability to drive. They were never designed for the determination of impairment by any other substance.

STUDIO: It’s 8:00 here on 980, WCAP. We’re chatting with Attorney Michael Bowser, a member of our Expert Network. We’re going to override the ABC news because I want to get to a couple more quick things with you. First of all, school zone infractions. One of the earliest lessons I learned while driving was don’t get caught speeding in a school zone. I was very fortunate. I got off with a, a very stern warning, but I also found out that the penalties are much harsher. You could lose your license for speeding in a school zone.

MR. BOWSER: And the school zone that I was referencing was the, again, a change in the drug laws. And there are specific regulations for speeding in a school zone. Often times you’ll see a crossing guard in a school zone, and you want to take extra care being slow through that zone. A recent change again in the drug laws. A decision came down where the school zone for purposes of possession with intent to distribute a drug within a school zone — (audio interrupts) they’re also clogged and so are the jails with the mandatory minimum sentences that flow from possession with intent to distribute from a school zone. So put yourself on any street corner in Lowell, it’s not too hard to find a school or a daycare center within a thousand feet of pretty much any corner in Lowell. Now, if you take yourself out to Westford or Littleton or Boxborough, that’s not the case. So the SJC said that the impact of that law was affecting essentially urban folks more so than anyone else unfairly. They reduced that school zone to 300 feet.

STUDIO: Yeah, they changed that law. Is it — you know, we hear an awful lot about the backlog in courts. Pretty much drugs and substance abuse in one form or another, be it for crime, burglaries that, you know, are spurred on by drug use or the actual distributing, using, operating under the influence.

MR. BOWSER: I think if you eliminated alcohol and drugs from the docket. Meaning if you removed those two issues from every case in the Lowell District Court, the docket would probably shrink by about 75 or 80 percent. And that’s — that is just the nature of the practice in the district court.

STUDIO: Wow.

MR. BOWSER: It’s usually many offenses, whether they be theft or assaults or driving under or drug, you know, they’re related to drugs or alcohol.

STUDIO: But I’m guessing that even you as a defense attorney wouldn’t argue that it’s — some of these offenses need to be prosecuted, correct?

MR. BOWSER: Most of the cases that — well, let me back up there. A lot of the cases are there for good reason and some are not. So it’s, you know, the decision on the street by the police is to make an arrest based on probable cause. They do that. Lowell has — it’s an urban setting, there’s obviously a higher rate of crime here in Lowell than there is in some suburban communities, and that’s part of it, is that we — that is why we are so busy in Lowell.

STUDIO: Will the presence of the drug court that has been talked about coming to Lowell, will that change things? Will that alleviate the backlog in the regular court system?

MR. BOWSER: I think the goal with the drug court is to remove from the regular docket, people that have drug offenses with the hope that their participation in that program will mean that they won’t see them again. And that’s really the goal of the drug court, is to remove from the docket persons that are struggling with addiction issues. Give them the opportunity to get treatment without the burden of maybe the regular probationary system or a conviction, with the hope that they don’t come back. That they get off that path.

STUDIO: What percentage of the folks that you see as defendants in courthouses are repeat offenders, especially in the drug thing. I would guess a very high percentage?

MR. BOWSER: On the drug side of things? I would say a very high percentage of defendants are in fact repeat offenders. That’s what the drug court is trying to avoid. They’re trying to get people off that track, into some form of treatment, counseling, supervision and remove them from that track of coming back over and over again.

STUDIO: Attorney Michael Bowser. He is a member of our Expert Network, and we chat with him on Thursdays here on Merrimack Valley Radio. You have offices both in Massachusetts and New Hampshire. Chelmsford and Nashua if I remember correctly.

MR. BOWSER: Yes we do. And you’ve always asked me how people can reach me. You can also follow me on Twitter @BowserLaw.

STUDIO: You’re on the Twitter sphere now.

MR. BOWSER: I try to tweet twice a week just to give people an update as to what I’m doing and where I’m going so if you want to follow me on Twitter @BowserLaw, and the website isBowserlaw.com.

STUDIO: Just don’t follow those tweets too closely when you’re driving your vehicle or else you may be in need of his services.

MR. BOWSER: Right.

STUDIO: Counselor, thank you so much for coming in. Thank you so much for the Mrs. Nelson’s Fudge. You don’t know what you’ve done to me by bringing that in. Merry Christmas, Happy Holidays, Happy New Year to you and your family.

MR. BOWSER: Teddy, Merry Christmas to you and to all your listeners as well.

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